Trump and the Truth: The “Mexican” Judge

The deliberate confusion of ethnicity for nationality, as exemplified by Donald Trump’s treatment of Judge Gonzalo P. Curiel, is one of the most casually cruel rhetorical devices used today.

PHOTOGRAPH BY MARK PETERSON / REDUX

This essay is part of a series The New Yorker will be running through the election titled “Trump and the Truth.”

The deliberate confusion of ethnicity for nationality is one of the most casually cruel rhetorical devices available in this country. It’s a lie that, in being told, makes itself partly true. If, for instance, a national politician refers to a Mexican-American as a Mexican, in an attempt to discredit him, then a portion of that person’s American-ness, as it is understood by some portion of his countrymen, degrades. This is, of course, precisely what Donald Trump did to the United States District Judge Gonzalo P. Curiel over the summer, when he repeatedly cited the Indiana-born Curiel’s identity as a “Mexican” as evidence that Curiel could not be impartial in the California class-action lawsuit against Trump University. For a particularly unhinged stretch in May and June, Trump refused to stop. “I’m building a wall. It’s an inherent conflict of interest,” he said.

Trump really seemed to believe this, his moral universe apparently operating on a simple principle: anyone who does not actively favor him must be unethical. There couldn’t possibly be a case against Trump University, a company so successful and fantastic that it was notified during its first year of operation by the New York State Education Department that its use of the word “University” in its name violated state law. Tarla Makaeff, the original plaintiff in the California lawsuit, spent nearly sixty thousand dollars on Trump University packages, including the “Gold Program,” which promised a year of personal mentorship. In her complaint, Makaeff says she received “no practical insights and no mentorship,” just a three-day workshop with “excursions to Home Depot.”

The quickest way to make money is to steal it, and over its six-year run Trump University brought in an estimated forty million dollars in revenue from thousands of people like Makaeff. Two lawsuits are pending against the company in federal court, in addition to an ongoing suit brought by New York’s attorney general. But Trump managed to pull the spotlight from this shameful fiasco by doing something even worse: calling a fundamental tenet of national identity into question. Who gets to be an American? Not Curiel, according to Trump, because “he’s a Mexican.” And then Trump took it one step further, implying that Curiel, being a Mexican, was incapable of doing his job.

One of the most striking things about Trump’s attempt to discredit Curiel is the fact that Curiel has not always ruled against Trump. In February, 2014, Curiel denied nationwide class-action status to the plaintiffs, giving them class-action status in just New York, Florida, and California; he also narrowed the number of claims from fourteen to five. When Trump University countersued Makaeff, a separate judge allowed the case to go forward. When the Ninth Circuit Court of Appeals ruled in her favor, Curiel reduced her award for legal costs by more than five hundred thousand dollars, nearly forty per cent less than what she was asking. In 2016, when Makaeff asked to withdraw as a main plaintiff in the California lawsuit—citing health issues, public “barbs” from Trump, and an excess of publicity—Curiel allowed her to do so, but did not grant her request to be exempt from the possibility of having to pay for the time that Trump’s lawyers spent fighting her, or her request for an order preventing Trump from using her withdrawal as the basis for future litigation against her.

Nonetheless, Trump has long seen Curiel as specifically opposed to him. In October, 2014, Alan Garten, the Trump Organization’s general counsel, told CBS that Trump would ask Curiel to recuse himself because of “animosity toward Mr. Trump and his views.” The explicit connection to Curiel’s ethnicity came soon after. On March 5, 2015, a month before Curiel ruled on the award for Makaeff’s legal fees, Trump tweeted, “I hope the Mexican judge is more honest than the Mexican businessmen who used the court system to avoid paying me the money they owe me.” The judge whom Trump had in mind here may or may not have been Curiel; since 2007, Trump has been obsessed by a personal financial dispute in Mexico concerning the Miss Universe pageant, which was held that year in Mexico City. Trump claims that two Mexican businessmen, Pedro Rodriguez and Rodolfo Rosas Moya, owe him twelve million dollars from the pageant’s financing agreement. (He reportedly won a judgment against Rosas Moya in 2012.)

Since then, Trump has come to hold “much of Mexico” in virulent suspicion. “It is a shame that these few individuals can have such a negative effect on a country and a country’s reputation,” Trump’s special counsel, speaking of the two businessmen, told a reporter for Bloomberg in June, 2015. Earlier that month, Trump had started describing Mexicans as rapists. By 2016, the label “Mexican” had taken on such a mythologically corrupt quality for Trump that it could be used as an aspersion on an American judge—a racist shorthand that, for many of Trump’s supporters, made total sense.

It’s worth noting that Trump built up to those aspersions with innuendo. At first, Curiel was “Spanish, which is fine. He’s Hispanic, which is fine.” That’s how Trump put it at a rally in Arkansas in February. The next day, he told Chris Wallace, of Fox News, “The judge has been extremely hostile to me. I think it has to do with perhaps the fact that I’m very, very strong on the border.” He brought Curiel up again at a rally in May, the same day that Curiel ruled in favor of a Washington Post_ _motion to unseal documents relating to a separate Trump University lawsuit. Particularly furious, Trump called Curiel “a very hostile judge,” a “judge, who happens to be, we believe, Mexican, which is great. I think that’s fine.”

Except that Curiel’s heritage also presented, Trump said, “an absolute conflict.” In June, when asked by CNN’s Jake Tapper about his reasoning, Trump said, “This judge is of Mexican heritage. I’m building a wall, O.K.? I’m building a wall.” He brought up Curiel’s membership in “a society, very pro-Mexico.” This was a reference to the San Diego La Raza Lawyers Association, an unremarkable professional group, which a Trump spokeswoman, Katrina Pierson, conveniently confused with the National Council of La Raza, an advocacy group that has repeatedly denounced Trump and does not claim Curiel as a member. Taking his point even further, Trump told CBS’s John Dickerson, a couple of days later, that it would be “possible, absolutely” for a Muslim judge to be unfair to him on account of his anti-Muslim views. It was a telling moment: Trump views his prejudice as a fixed and essential quality, much like ethnicity, and when the two things come in conflict he expects ethnicity itself to bend.

Eventually, Trump was persuaded to drop the subject of Curiel, leaving us with his barbaric view of American jurisprudence, in which a judge could be disqualified if a plaintiff held prejudices against a group to which the judge belonged. (By this metric, women and minorities would rarely be able to sit on a bench.) And while I remain hopeful that relatively few people truly support this vision—Trump faced near-unilateral backlash for his remarks about Curiel—it’s based on a definition of identity that’s remarkably common. Many Americans believe that identity is constructed of whatever differentiates a person from what is falsely considered neutral: whiteness, straightness, and maleness. The idea is prevalent even in circles that ostensibly value difference: identity is whatever attracts discrimination, and nothing else.

Bigotry reinforces its own untruths, and so this reasoning has proved itself resilient. It’s precisely why some white Americans believe the concept of race to be inherently beneath them—why they preach “post-racialism,” or say that they don’t see color, or declare that “all lives matter.” In this country, it’s still easy to absorb the idea that race is ugly, and that to acknowledge it at all is itself a sign that there is a problem. That to be identified as anything that would set off a bigot is to be tarnished. The hard legacy of prejudice is evident in this Trumpian vision of bias as an essential quality that will never go away—as a cruel, fixed truth that we must respect, sometimes more than we should respect a judge. Trump is proud of his racist wall fantasy, but he says the word “Mexican” as if it were embarrassing. I have heard many, many white people whisper terms for color in a similarly titillated and distancing way. “He’s black,” someone will say, swallowing a simple description as if it were a slur. This summer, Trump reinforced these whispers, staking his campaign on the powerful and heinous pretense that whatever modifies American must be a dirty word.